This case arose under the Federal Service Labor-Management
Relations Statute (the Statute), and the revised Rules and
Regulations of the Federal Labor Relations Authority (the
Authority).

Based upon an unfair labor practice charge filed by the
American Federation of State, County and Municipal Employees, Local
2830, AFL-CIO (AFSCME/Charging Party), against the U.S. Department
of Justice, Office of Justice Programs, Office of Juvenile Justice
and Delinquency Prevention (Respondent),

a Complaint and Notice of Hearing was issued on November 21,
1997. The complaint alleges that the Respondent failed to comply
with provisions of section 7114(a)(2)(B) of the Statute, by denying
an employee the right to have a representative of the Charging
Party present during an examination, in which the employee
reasonably feared that disciplinary action would be taken against
her, and thereby, violated section 7116(a)(1) and (8) of the
Statute.

A hearing was held in Washington, DC, at which time all parties
were represented and afforded full opportunity to be heard, adduce
relevant evidence, examine and cross-examine witnesses, and file
post-hearing briefs. Counsel for the Respondent and the Charging
Party filed timely briefs.

Based on the entire record, including my observation of the
witnesses and their demeanor, and evidence, I make the following
findings of fact, conclusions of law, and recommendations.

Findings of Fact

Edith Lawrence, at all times material herein, was employed as a
secretary in the Respondent's Training and Technical Assistance
Division and is a member of the bargaining unit represented by the
AFSCME, Local 2830.

John J. Wilson is a supervisor or management official under the
Statute and was acting on behalf of the Respondent, at all times
material herein.

On June 26, 1997(1), unit
employee Lawrence engaged in an act of misconduct involving her
then-supervisor, Frank Porpotage. On that day, Porpotage asked
Lawrence to come into his office to counsel her about a derogatory
e-mail message she had disseminated throughout the organization.
During the course of this counseling session, Lawrence gave
Porpotage "the finger." In response, Porpotage issued Lawrence a
letter of reprimand on July 9, 1997, for disrespectful behavior.
Upon receiving this letter of reprimand, Lawrence, in a loud voice
and apparently in the presence of other employees, called Porpotage
a "liar" and a "phony." The following day, she sent a disruptive
e-mail message to all 700 employees in the Office of Justice
Programs (OJP) describing, in derogatory terms, the events that had
transpired.

In response to the incidents of misconduct which occurred on
July 9 and 10 respectively, Respondent's management, after some
internal discussion, arrived at a decision to issue Lawrence a
proposed 10-day suspension. During those internal management
discussions, it was also determined that Wilson, as Deputy
Administrator, Office of Juvenile Justice and Delinquency
Prevention, would issue the letter of proposed suspension.

On July 14, at approximately 4:00 p.m., Wilson requested
Lawrence's presence in his office. Once there, he closed the door
and presented Lawrence with the letter of proposed discipline and
explained that the purpose of the meeting was for her to read the
letter and to sign it, if she so chose. It is unchallenged that the
meeting lasted approximately 45 minutes. It is also undisputed that
Lawrence read the letter in short segments and provided Wilson with
her observations relating to a number of perceived injustices she
had suffered. Wilson did not engage in a dialogue with Lawrence,
but instead, averted her comments and attempted to keep the meeting
focused on the letter of proposed suspension. It is clear that
Lawrence did, however, request representation at some point, but
Wilson suggested to her that she seek counsel from the Union
regarding the proposed suspension.

Analysis and Conclusions

1. Positions of the Parties

The issue to be decided here is whether Lawrence had a
statutory right to union representation in accordance with section
7114(a)(2)(B) of the Statute.

Respondent contends that none of elements of section
7114(a)(2)(B) is present in this matter and, therefore, Lawrence
did not have a statutory right to union representation when she met
with Wilson on July 14. Accordingly, Respondent argues that since
there was no statutory right to union representation, it did not
violate section 7116(a)(1) or (8) by issuing the letter of proposed
discipline to Lawrence without a union representative present.

The General Counsel contends that after all is said and done,
it is clear that Wilson sought to solicit additional information
and evidence to support the Respondent's action, as well as to see
if Lawrence would deny such allegations. If this is so, then, it is
urged that Lawrence's right to Union representation attached.
See Texaco, Inc., 251 NLRB 633, 643 (1980)(Texaco
I).

The General Counsel also contends that Respondent had not
reached a final, binding decision concerning Lawrence's discipline
at the time of the meeting. Accordingly, the suspension was a mere
proposal, giving the agency the option to reduce, sustain, or set
aside its proposal after Lawrence had answered. In the General
Counsel's view, Wilson as evidenced by his questions, was still
investigating the matter because Respondent did not investigate the
incident prior to issuing the proposed suspension. Wilson testified
during the proposal process, "Lawrence would have an opportunity to
respond and provide her side of the story, if you will, and that
was the way the facts were gathered so that a decision could be
made." The General Counsel reads this to mean that Respondent had
not concluded its investigation of the events or reached a final
decision regarding the suspension. In the view of the undersigned,
Wilson was talking about the entire disciplinary process and not
the notification herein which simply set the disciplinary wheels in
motion. Thus, Wilson testified, "that she had an opportunity under
the procedures that were outlined to respond to the proposed
suspension, that that was the appropriate forum to do that."

2. Lawrence Had No Statutory Right to
Union Representation Under the Circumstances

Section 7114(a)(2)(B) of the Statute sets forth what is
commonly referred to as the "Weingarten" provisions.(2) That section describes the specific
circumstances under which an employee has a statutory right to
union representation. Under section 7114(a)(2)(B), there are four
elements which must be present for this right to union
representation to attach. Thus, there is no absolute right to have
a union representative present, even during a "Weingarten"
investigation. The right is limited unless all four elements are
met. First, there must be an "examination" of the employee. Second,
the examination must occur "in connection with an investigation."
Third, the employee must "reasonably believe" that the examination
may result in disciplinary action against her, and finally, the
employee must request union representation. All four of these
elements must be present before a statutory right to union
representation attaches. See American Federation of Government
Employees, Local 1941, AFL-CIO v. FLRA, 837 F.2d 495, 498
(D.C. Cir. 1988); Department of the Air Force, Sacramento Air
Logistics Center, McClellan Air Force Base, California, 29
FLRA 594, 602 (1987). It is Respondent's position that the four
sub-issues which form the broader issue clearly show that Lawrence
was not entitled to union representation during the July 14,
meeting. Respondent forges the sub-issues as follows: (1) whether
there was an examination of Lawrence by Wilson during the meeting
of July 14; (2) whether the meeting of July 14, was in connection
with an investigation; (3) whether Edith Lawrence could have
"reasonably believed" that disciplinary action may have resulted
from the meeting; and (4) whether Lawrence requested union
representation. For the reasons that follow, I find that Respondent
did not fail to comply with section 7114(a)(2)(B) in violation of
section 7116(a)(1) and (8) of the Statute. Therefore, it is found
that Lawrence did not have a right to representation in this
case.

a. There Was
No Examination of Lawrence ByWilson During the
July 14, Meeting

It has long been held by the Authority that a meeting which is
conducted by management for the sole purpose of informing an
employee of a decision that has already been reached is not an
"examination" for purposes of section 7114(a)(2)(B). United
States Air Force, 2750th Air Base Wing Headquarters, Air
Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 9 FLRA 871 (1982). See also Department of the Navy,
Norfolk Naval Base, Norfolk, Virginia, 14 FLRA 731, 749
(1984). This approach is consistent with the rulings of the
National Labor Relations Board on this same issue. See, Baton
Rouge Water Works Company, 246 NLRB 995 (1979)(Baton
Rouge).

It is clear from the record in this case that the meeting of
July 14, was conducted solely for the purpose of issuing Lawrence a
letter of proposed suspension for prior misconduct. Wilson
testified that during the period following the incidents of
misconduct, internal management discussions were held to determine
the appropriate course of action, and a "conclusion" was reached to
issue a letter of proposed suspension.(3) Wilson added that once the decision to
propose the suspension was made, no further internal discussions
occurred. As stated by Wilson, the sole reason for the meeting was
to "present the proposed suspension in a private setting where she
would have an opportunity to read it." Lastly, the evidence
demonstrated that no defense offered by Lawrence or by a
representative would have deferred Respondent from its proposed
disciplinary decision in this case. Texaco I.

Wilson testified that he did not question Lawrence in any way
during the course of the July 14, meeting, as the decision to issue
the letter of proposed discipline was based on facts and evidence
obtained prior to the meeting.(4)
Although some conversation did occur, Wilson explained that this
conversation was initiated and perpetuated by Lawrence. The fact
that a conversation followed, which was initiated by the employee,
after the letter of proposed discipline was issued does not
automatically convert the meeting into an "examination" which would
trigger Weingarten rights. See Baton Rouge, 246 NLRB at
997; see also United States Air Force, 2750th Air
Base Wing Headquarters, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 10 FLRA 97, 108-09
(1982). A Weingarten right would attach only if the agency, after
informing the employee of the disciplinary decision, sought
additional facts or evidence in support of the action or attempts
to have the employee admit his or her wrongdoing. Id. If, however, as in the instant case, some
conversation occurs, but the agency is only concerned with the
administration of discipline and is not seeking additional evidence
in support of the disciplinary action, then no Weingarten right
would attach. Texaco, Inc., 246 NLRB 1021
(1979)(Texaco II). The determining question in these cases
is whether the agency is concerned with the administration of
discipline or whether it is seeking to obtain facts, evidence or an
admission in support of the disciplinary action. Baton Rouge,
supra. Case law thus reveals that an agency is not required to
remain absolutely silent when presenting a proposal for discipline,
but restraints are placed on what an agency can talk about in such
situations. In my view, Respondent did not exceed those limits in
the instant case.

Lawrence insists that the meeting was an interrogation by
Wilson, but her own testimony disclosed that she, not Wilson
initiated the discussion about her prior conduct. Lawrence set the
course of the conversation because she,

". . . felt that he believed what was in that paragraph and it
was important that I communicate to him that it was not completely
true. So, because he had my fate in his hands, I
decided to try to explain what happened." (Emphasis
added).

There is no question that Lawrence also used the meeting as an
opportunity to raise other complaints with Wilson, issues unrelated
to the misconduct cited in the proposed suspension, but instead,
involving a prior grievance over upward mobility and her perception
that she had been treated unfairly by her superiors. Wilson's
testimony supports a finding that it was indeed Lawrence who sought
to explain the incidents on which the proposed discipline was
based. He testified as follows:

"Well, the way it proceeded was that as she would read the letter,
she would stop reading it periodically and start explaining
different things about the proposed discipline, about her history
with her problems in the office and union representation, and so
forth. She was trying to explain to me what her side of the issue
was and trying to respond to the material that was in the
memorandum."

Wilson stated that when he had the opportunity, he reminded
Lawrence that the purpose of the meeting was for her to review the
memorandum and sign it, and that under the procedures outlined in
the proposed suspension she would have a chance to do those things
in the appropriate forum.

Lawrence also admittedly used the approximately one hour
meeting to voice other complaints about mistreatment and perceived
unfairness to her. A perusal of the record shows that Lawrence did
think that Wilson was investigating the matter and she sought then
and there to convince him that he should "squash the suspension."
She obviously did not hear Wilson's instructions on what the next
step would be in the matter.

It appears that the "questions" Lawrence insists were asked
by Wilson were not questions but were, instead, statements or
responses to questions asked by her. A review of the record shows
that references to revoking Lawrence's access to e-mail, making an
appointment to meet with Bilchik, and keeping the appointment with
a psychologist were actions contained in the proposed suspension
and not accusations which would require further evidence or an
admission from Lawrence. It appears to the undersigned that Wilson
was simply responding to Lawrence's observations and explaining
what was required by the proposed suspension in the event Lawrence
desired to contest the matter. Also, he seemed to be explaining his
ability to revoke Lawrence's e-mail privileges and providing an
alternative way for her to do her assignments. Thus, it is found
that Wilson was not interrogating Lawrence but only answering
issues that she raised during this somewhat lengthy
conversation.

Based on the foregoing, it is clear that the meeting of July
14, was not an examination, as it was conducted solely for the
purpose of issuing the letter of proposed discipline. Furthermore,
the fact that a conversation ensued, which was initiated by
Lawrence, does not convert the meeting into an examination and
trigger the right to representation. Despite Wilson's advice to the
contrary, Lawrence sought to explain her position on the proposed
suspension, as well as on other matters. Her explanations however,
do not raise this matter to the level of an "examination."

Accordingly, since no examination occurred, I find that the
first element of section 7114(a)(2)(B) has not been met.

b. The July 14 Meeting Was
Not "In Connection Withan
Investigation"

The second element necessary for a right to union
representation to attach under section 7114(a)(2)(B) is that the
examination must be "in connection with an investigation." The
Authority has found that an examination is "in connection with an
investigation," if its purpose is "to obtain the facts" and
"determine the cause" of an incident. U.S. Immigration and
Naturalization Service, U.S. Border Patrol, Del Rio, Texas, 46
FLRA 363, 372 (1992). Thus, it appears that management must be
attempting to "elicit answers to a work-related matter" by making
specific inquiries such as who, what, when, and how. Id.

As previously found, the meeting of July 14 was not an
"examination." Further, the undersigned agrees with Respondent that
the meeting was not "in connection with an investigation." Wilson
testified that Respondent did not conduct any investigation into
Lawrence's misconduct, but instead, held internal discussions to
determine the most appropriate course of action.(5) As a result of these discussions,
Respondent arrived at its "conclusion" to issue a letter of
proposed suspension prior to Lawrence's meeting with Wilson and,
therefore, was not seeking any additional information from
Lawrence, but was merely starting the disciplinary ball rolling.
Thus, it appears that a final decision to discipline Lawrence was
made prior to preparing the proposal for a 10-day suspension that
was presented to Lawrence on July 14. This proposed suspension
simply put Lawrence on notice that Respondent had already made its
decision to discipline her. The proposed suspension therefore,
moved the matter to the next level and offered the opportunity for
reply; set a timetable for reply; and gave the opportunity for
Lawrence to obtain a representative of her choosing. Once a
disciplinary decision has been made the disciplinary action shifts
to another arena. See for example, Baton Rouge,
supra. Although Lawrence had an option to go forward and
seek to have the 10-day suspension reduced or even reversed, this
does not change the fact that it was a "final" and not an interim
decision to discipline Lawrence for her actions on July 9 and
10.

The evidence shows that at various points during the close
to one-hour conversation Lawrence discussed the July 14 letter of
proposed suspension; the written reprimand issued by Porpotage on
July 9; and an earlier, unrelated grievance which was filed in
April 1996. Lawrence combined these three separate incidents in her
recollection of the meeting, and it is, apparent from her testimony
that she clearly believed that the meeting was investigatory.

Lawrence stated that another reason for discussing the
matter with Wilson, was because he said that he was going to
examine and investigate the issues, and that he was an attorney,
the active attorney that was handling the agency's case. It is
difficult to believe that Wilson would make such a statement when
he was clearly acting in his position as Deputy Administrator in
issuing the proposed suspension, not as an investigator. Lawrence
seemed to confuse this action with an earlier grievance that she
filed which, Wilson had investigated. Indeed Lawrence appears to
have wanted to make Wilson the investigator as she testified, "I
thought he was going to investigate. . . ." Furthermore, Lawrence
added, "I wanted him to know that the whole issue was contrived."
The claim that Wilson was seeking "to obtain the facts" or
"determine the cause" of the incidents appears groundless.
Lawrence's testimony revealed how hopeful she was that Wilson would
undertake an investigation of the incidents involving Porpotage. In
Lawrence's view it seemed that there had been no investigation, and
she was no doubt hoping that disclosing information to Wilson would
influence him to investigate her allegations and, that she would
therefore, be exonerated.

It is the view of the undersigned, that Wilson neither sought
to solicit additional information and evidence to support
Respondent's action nor did he seek to see if Lawrence would deny
such allegations. As previously noted, this was a meeting to begin
the disciplinary process and the approximately one hour
conversation that occurred did not turn the meeting into an
investigation. There is clearly no entitlement to union
representation where a meeting is called solely to inform an
employee of a disciplinary decision previously made and to
determine whether the employee understood why discipline is being
imposed. Baton Rouge.

In this matter, I find that Wilson did not exceed the above
requirement. Accordingly, the second element of section
7114(a)(2)(B) has not been met.

Thus, based on the foregoing, it is found that the meeting of
July 14 was not "in connection with an investigation."

c. Lawrence Could Not Have "Reasonably
Believed" that Disciplinary Action Might Have

Setting aside the fact that the meeting of July 14 did not
involve an examination and was not in connection with an
investigation, under the circumstances presented, a reasonable
person would not conclude that disciplinary action might have
resulted from the meeting. That is, if an employee is informed that
the purpose of a meeting is merely to perform the ministerial act
of issuing a letter of proposed discipline, a reasonable person
would not conclude that attendance at, and participation in, such a
meeting might form the basis of disciplinary action. While the
individual may have a subjective belief that attendance at such a
meeting might result in further disciplinary action, the
undersigned agrees with Respondent that such a belief is not
objectively reasonable in the circumstances of this case. Lawrence
testified that she thought Wilson was investigating the matter. An
unsettled Lawrence mistakenly believed, in my view, that this was
the time and place to begin her defense of this proposed
suspension. That belief, however, was unfounded. Although the
penalty may have been reduced at the next level, the fact that
Respondent had already made a final decision that some discipline
should be initiated in Lawrence's case is unchanged. Accordingly,
it was established that the Respondent, based on facts and evidence
that it had prior to the meeting, arrived at its ultimate decision
to discipline Lawrence prior to the July 14 meeting.

Although Lawrence may have believed that her attendance at, and
participation in the July 14 meeting might have resulted in
disciplinary action, such a belief was not reasonable. Accordingly,
the third element of section 7114(a)(2)(B) has not been met.

d. Lawrence Did Not Request Union
Representation

The right to union representation under section 7114(a)(2)(B)
will affix itself only if a valid request for such representation
is made. This requirement has been upheld by the Authority in
numerous prior decisions. See, Norfolk Naval Shipyard,
Portsmouth, Virginia, 35 FLRA 1069, 1073-74 (1990). It has
also been held that the request must be sufficient to put the
employer on notice of the employee's desire for representation.
Id.

Wilson testified, that Lawrence did not, at any time during
the meeting of July 14 request Union representation. To the
contrary, the only time that the union was even mentioned during
the conversation, according to Wilson, was when it was raised by
him when he suggested that Lawrence might want to consider speaking
with the Charging Party concerning the proposed suspension. When
Wilson raised the subject of the Union, Lawrence, according to
Wilson, expressed dissatisfaction with the service that the Union
had provided her on previous occasions and told him that she would
not be contacting the Union.

As with the other elements, Wilson's testimony on this point
is credible. Wilson's testimony was consistent throughout the
proceeding; his recollection was clear that no request was made and
that it was he who broached the subject of union
representation.(6)

Lawrence stated that she requested union representation at
two distinct points during the meeting--the first was made after
she briefly skimmed the letter of proposed discipline, and the
second was made when Wilson suggested that she contact a counselor
in the employee assistance program. Later on in her testimony,
however, Lawrence testified that she asked for union representation
when she found out that Wilson "was actually the attorney handling
the agency's case." At still a later point, she again altered her
account and testified that "she asked for union representation
because [Wilson] was asking me all these questions and I was
concerned." Finally, Lawrence made one last attempt to identify the
point when she requested union representation: "I believe it was on
the second page . . . [w]hen he said that you have a right to
review the material about the third paragraph." In the
circumstances, although it is clear that Lawrence did mention union
representation, Wilson's testimony that union representation was
not requested is credited.

Even assuming that Lawrence is credited with regard to her
request for a representative, based on the prior findings in this
matter, she would still not be entitled to a representative since
no section 7114(a)(2)(B) rights were triggered by this meeting. It
is essential that all four elements are satisfied before a
statutory right to union representation attaches. Consequently, the
right does not affix itself if one or more elements are not shown.
Since none of the elements of section 7114(a)(2)(B) are satisfied
in the instant case, Lawrence, in the undersigned's view did not
have a right to union representation. Accordingly, it is found that
Respondent did not violate section 7116(a)(1) and (8) of the
Statute by failing to comply with section 7114(a)(2)(B) of the
Statute.

In summary, I find that none of the four elements of section
7114(a)(2)(B) is present in the instant case. Accordingly, Lawrence
was not denied the right to have a union representative present
when she met with Wilson on July 14. Therefore, it is recommended
that the Authority adopt the following Order:

3. While the decision to issue
Lawrence a 10-day suspension was not final on July 14, the decision
to propose such a suspension had been finalized in advance of the
meeting. The purpose of the meeting, therefore, was merely to
communicate that decision to Lawrence. This situation is clearly
distinguishable from one where the employer has not made any
disciplinary decision prior to the meeting. Under the latter set of
circumstances, the NLRB has ruled that a Weingarten right would
attach. See, Henry Ford Health System, 320 NLRB 1153
(1996). The instant circumstances are distinguishable, as a final
decision to initiate the disciplinary process had already been
made.

4. In this regard, it would have
served no purpose for Wilson to question Lawrence since Shay
Bilchik--not Wilson-- was the deciding official on the discipline.
Further, by providing Lawrence with the right to respond to the
proposed discipline at a later date, Respondent seemingly
recognized that there would be another, more appropriate,
opportunity to question Lawrence about the incidents. Once a
disciplinary decision has been made, it would seem that the
di